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Civil RICO: a Manual for Federal Attorneys

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Civil RICO: a Manual for Federal Attorneys RICO ManForFedAtt Cover 10/11/07 2:08 PM Page 1 U.S. Department of Justice Criminal Division Organized Crime and Racketeering Section Civil RICO: A Manual for Federal Attorneys October 2007 Civil RICO: 18 U.S.C. §§ 1961-1968 A Manual for Federal Attorneys October 2007 Prepared by the Staff of the Organized Crime and Racketeering Section United States Department of Justice, Washington, DC 20005 Douglas E. Crow, Principal Deputy Chief Amy Chang Lee, Assistant Chief (202) 514-3594 Written By: Frank J. Marine, Consultant Patrice M. Mulkern The assistance of the following is acknowledged and greatly appreciated: David M. Brink Gregory C.J. Lisa James Francis McKenzie Melissa Marquez-Oliver Melvin Otey Gerald Toner Catherine M. Weinstock Cover Design by Linda M. Baer TABLE OF CONTENTS PAGE PREFACE i TABLE OF CONTENTS ii I. INTRODUCTION AND APPROVAL PROCESS 1 A. Introduction 1 1.Overview 1 2. Guidelines for Bringing Civil RICO Lawsuits 3 B. Prior Approval by the Organized Crime and Racketeering Section of All Government Civil RICO Lawsuits is Required 6 1. Approval Authority and Process 6 2. Post-Complaint Duties 8 II. OVERVIEW OF EQUITABLE RELIEF, CIVIL RICO, AND ITS LEGISLATIVE HISTORY 10 A. Origins and General Nature of Courts’ Equitable Authority 10 1. Origins of Court’s Equitable Authority 10 2. Courts Are Vested With Broad Equitable Powers To Remedy Unlawful Conduct, Including Ordering Intrusive, Structural Changes in Wrongdoers’ Entities and Practices 13 B. Congressional Findings and Purposes Regarding Civil RICO 16 C. Congress Designed 18 U.S.C. § 1964 (a) to Authorize District Courts To Impose the Full Panoply of Equitable Relief 18 1. Injunctions 21 2. Divestiture, Dissolution and Reorganization 21 3. Disgorgement 22 iii PAGE 4. Limitations on Future Activities and Removal from Positions in an Entity 25 5. Appointment of Court Officers 26 D. Civil RICO, 18 U.S.C. § 1964, is Patterned After Antitrust Laws, and Hence Vests the Attorney General of the United States With the Exclusive Authority to Obtain Equitable Relief, and Vests Private Litigants, But Not the United States, With the Authority to Sue for Treble Damages 26 E. Equitable Relief Available Under Civil RICO is at Least As Broad As Equitable Relief Under the Antitrust Laws, If Not Broader 33 III. ELEMENTS OF GOVERNMENT CIVIL RICO LAWSUITS AND DEFENSES 38 A. Standards For Obtaining Equitable Relief 38 1. The Government Must Establish a Reasonable Likelihood of Future Violations By a Preponderance of the Evidence 38 2. Making Due Provision for the Rights of Innocent Persons 41 B. Substantive Issues In Proving Government Civil RICO Claims 43 1. A Defendant’s Liability For A Racketeering Act May Be Based On “Aiding and Abetting” 43 2. Principles of Respondeat Superior 47 3. A Corporation’s or Labor Union’s Scienter May Be Established By The Collective Knowledge of The Corporation’s or Labor Union’s Employees and Representatives 52 4. The Prohibition Against Intracorporate Conspiracies Under The Antitrust Laws Does Not Apply To Government Civil RICO Lawsuits 59 C. Certain Defenses Do Not Apply to Government Civil RICO Actions For Equitable Relief 61 iv PAGE 1. Laches and Statute of Limitations 61 2. United States’ Civil RICO Claims Cannot Be Implicitly Waived 64 3. Equitable Estoppel Can Not Lie Against the United States, If Ever, Absent Affirmative Misconduct 66 4. The United States Is Not Subject to the Defenses of Unclean Hands or In Pari Delicto 69 D. Collateral Estoppel 71 IV. JURISDICTION AND VENUE 75 A. Serving the Summons 75 B. General Principles Governing Subject Matter and Personal Jurisdiction 79 1. Subject Matter Jurisdiction 79 2. Due Processing Requirements for State Courts’ Exercise of In Personam Jurisdiction Under the Fourteenth Amendment as to State Claims 79 3. Due Process Requirements Under the Fifth Amendment for Federal Courts’ Exercising In Personam Jurisdiction Over Federal Causes of Action 85 C. Civil RICO’s Jurisdiction and Venue Provision 87 1. Overview of Civil RICO’s Jurisdiction and Venue Provision 88 2. The Bases for Venue Under Section 1965(a) 91 a. The District In Which Such Person “Resides” 91 b.“Found” 91 c. “Has an Agent” 92 d. “Transacts His Affairs” 92 3. Nationwide Service of Process Under Section 1965(b) 93 v PAGE 4. Transfer of Venue - Forum Non-Conveniens 95 V. PROCEDURAL MATTERS 96 A. Expedition of Actions 96 B. Adequacy of the Pleading and Drafting the Complaint 96 1. Adequacy of the Pleading 96 a. General Principles 96 b. Application of Civil Rule 9(b) 100 2. Drafting the Complaint 102 C. There is No Right to a Jury Trial on Claims for Equitable Relief 104 D. Standards Governing Motions for Summary Judgment 109 1. General Principles 109 2. Issues of Intent Generally are Ill-Suited for Summary Judgment 113 VI. DISCOVERY 114 A. Civil Investigative Demands (CID) 114 1. RICO’s CID Provisions 114 2. Background 117 3. Issuance of a CID 120 4. Content of a CID 122 5. Proper Service of a CID 123 6. Racketeering Documents Custodians 124 7. Enforcement and Litigation of CIDs 126 a. Petitions by the Attorney General 126 vi b. Petitions by the CID Recipient 127 c. Powers of the District Court 129 B. Discovery in General 130 C. Privileges 137 1. Deliberative Process, Presidential Communications and Investigatory Files Privileges 137 a. The Deliberative Process Privilege 138 b. The Presidential Communications Privilege 139 c. The Investigatory Files Privilege 143 2. Confidential Informant Privilege 145 3. Fifth Amendment Privilege 153 VII. JUDGMENTS, CONSENT DECREES, AND ENFORCEMENT 157 A. Judgments and Consent Decree 157 1. The General Nature of Consent Decrees and Rules of Their Construction 157 2. Courts Have Authority to Modify Judgments and Consent Decrees Under Some Circumstances 162 B. Default Judgments 164 C. Scope Of Injunctions, Requisite Specifity, And Their Application To Non-Parties 166 1. Scope of Injunctions and Requisite Specifity 166 2. An Injunction May Apply to Non-Parties in Various Circumstances 172 D. Removal Orders and Prohibition of Future Activities May Implicate Property Rights Protected By Due Process 177 E. Court-Appointed Officers in General 186 vii PAGE 1. Courts Have Inherent Authority to Appoint Officers to Assist Them in Executing Their Duties 186 2. Court-Appointed Officers Perform Varied Functions 190 a. Devising Remedies 190 b. Administering Operations 192 c. Monitoring Compliance and Adjudicatory Functions 192 3. Article III Considerations 193 F. Contempt 198 1. Determining Whether Contempt is Civil or Criminal in Nature 198 a. The Bagwell Decision 199 b. Decisions Following Bagwell 202 2. Different Elements and Procedures Apply to Criminal and Civil Contempt 205 a. Principles Governing Criminal Contempt 206 b. Principles Governing Civil Contempt 207 3. A Jury Trial for Criminal Contempt is Required When the Sanction Involves A “Serious Fine” or Imprisonment of More Than Six Months 211 VIII. GOVERNMENT CIVIL RICO CASES INVOLVING LABOR UNIONS 213 A. Overview of Government Civil RICO Cases Involving Labor Unions 213 1. Overview of Labor Racketeering 213 2. Congress Designed Civil RICO to Combat the LCN’s Corrupt Influence Over Labor Unions 216 3. The United States Department of Justice Adopted A Strategy to Eliminate the LCN’s Corrupt Influence Over Labor Unions 217 viii PAGE 4. Overview of Essential Relief 219 B. Specific Relief Obtained in Government Civil RICO Cases Involving Labor Unions 221 1. Injunctions 221 2. Dissolution, Divestiture and Reorganization 223 3. Court-Appointed Officers 224 (a) Officers to Administer the Affairs of a Union 224 (b) Adjudication Officers 228 (i) General Powers 228 (ii) Review Authority 229 (iii) Disciplinary Powers 229 4. Imposition of Ethical Practices Codes and Disciplinary Procedures 231 a. Disciplinary Procedures 231 b. Due Process and Article III Considerations 234 5. Election Reform 238 6. Removal of Persons From Union Office and Membership, and Prohibitions on Holding Union Office or Membership 240 7. Disgorgement 242 8. Relief Against Non-Parties 243 C. Relief Obtained In Contested Civil RICO Cases Involving Labor Unions 245 1. The IBT Local 560 Case 245 2. The Local 30, Roofers Union Case 247 3. The ILA Local 1804-1 Case 250 4. The IBT Local 295 Case 251 ix PAGE 5. The IBT Local 282 Case 253 6. The Mason Tenders District Council of LIUNA Case 256 7. The Private Sanitation Industry Ass’n Case 258 8. The LIUNA Local 6A Case 261 D. Union Officials and Entities As Nominal Defendants 262 1. Evidence of Wrongdoing is Not Required to Obtain Relief Against a Nominal Defendant 262 2. Nominal Defendants in Government Civil RICO Cases Involving Labor Unions 264 E. Specific Issues in Government Civil RICO Cases Involving Labor Unions 267 1. State Action and Due Process Considerations 267 2. First Amendment Issues 270 3. Equitable Relief in Government Civil RICO Cases Does Not Violate, And Is Not-Pre-empted By, The NLRA, The LMRDA or Other Labor Laws 272 a. General Procedures 272 b. The NLRA Does Not Pre-empt Government Civil RICO Lawsuits 274 c. The LMRDA Does Not Pre-empt Government Civil RICO Lawsuits 277 d. Other Labor Laws Do Not Pre-empt Government Civil RICO Lawsuits 281 F. Extortion Of Union Members’ Rights To Free Speech and To Participate In Internal Union Democracy Guaranteed By The LMRDA 282 1. Union Members’ Rights Under the LMRDA Constitute Intangible Property Within The Meaning of the Hobbs Act 282 x PAGE 2. A Defendant “Obtains” or Seeks to “Obtain” Intangible Property Rights From A Victim Within The Scope of the Hobbs Act When He Uses Extortionate Means In Order to Exercise Those Rights For Himself or a Third Party in a Way That Would Profit Them Financially 290 IX.
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